Sec.

CHAPTER NINETY-SIX.

OF JUDGMENT AND EXECUTION IN JUSTICE'S COURT.

Sec.

981. Docketing judgment in district 989. Execution to enforce judgment when

court.

982. Effect of same.

983. Setting of mutual judgment.

984. Conditions of judgment proposed as set-off.

985. When transcript stays execution. 986. If judgments mutual, justice must set-off.

987. Judgment for difference.

988. Judgment does not affect title to real property.

against real property.

990. Execution, when returnable, and by
whom served.

991. Filing transcript in another pre-
cinct.

992. Transcript of judgment, how en-
forced.

993. Execution, renewal of.
994. Justice may enforce judgment given
by his predecessor.

SEC. 981. Whenever a judgment is given in a justice's court in favor of anyone, for the sum of ten dollars or more, exclusive of costs or disbursements, the party in whose favor such judgment is given may, within one year thereafter, file a certified transcript thereof with the clerk of the district court, and thereupon such clerk shall immediately docket the same in the judgment docket of the district court.

SEC. 982. From the time of docketing a judgment of a district court, as provided in the last section, the same shall be a lien upon the real property of the defendant, as if it were a judgment of the district court wherein it is docketed.

Docketing judg ment in district court.

Effect of same.

SEC. 983. A party against whom a judgment is given in a justice's Setting off mucourt may, upon three days' notice to the adverse party, apply to the tual judgment. justice of such court to have another judgment given in a justice's court, between the same parties and against such adverse party, set off against such first-mentioned judgment.

of

SEC. 984. There must be no existing right of appeal from the judg-Conditions ment proposed as a set-off; and if such judgment was given in another judgment procourt than the one where the application is made, the party proposing posed as set-off. such set-off must produce a transcript of such judgment, certified by the proper justice, which certificate shall also state how much of the judgment remains unsatisfied, and that the transcript is given for the purpose of being set off against the judgment to which it is proposed as a set-off.

SEC. 985. The justice making such transcript and certificate shall make an entry thereof in his docket, and thereafter all proceedings to enforce such judgment shall be stayed, unless the transcript be returned, with the certificate of the proper justice indorsed thereon, to the effect that it has not been allowed to be set off.

When transcript stays execution.

If judgments must set off.

SEC. 986. If, upon the hearing of the application, the justice finds that the judgments are mutual, he shall give judgment allowing the mutual, justice proposed set-off.

SEC. 987. If there is any difference in the amount of the two judgments, judgment for the difference must be given in favor of the party owning the largest judgment. If the justice refuse to allow the set-off, he shall so certify on the transcript and return it to the party making the application.

Judgment for difference.

Judgment does

SEC. 988. Although the title to real property may be controverted or questioned in an action in a justice's court, the judgment in such not affect title to real property. action in no way affects or determines such title as between the parties thereto or otherwise.

SEC. 989. Execution to enforce a judgment in a justice's court must Execution to not be issued against or levied upon the real property of the defend- enforce judgment ant; but when a judgment given by a justice has been duly docketed when against real in the district court thereafter it must be enforced as a judgment of such district court.

property.

Execution, SEC. 990. An execution issued by a justice must be made returnable when returnable, in thirty days from the date thereof, and may be directed to the marand by whom shal or any deputy or other officer authorized to act as constable in such precinct, and must be executed by any of such officers when delivered to him.

served.

cinct.

Filing transcript SEC. 991. When an execution is returned unsatisfied in whole or in in another pre- part for want of goods and chattels of the defendant whereon to levy, the party entitled to the benefit of the judgment may have a certified transcript thereof and file the same with any justice in any other precinct.

forced.

Execution, renewal of.

Transcript of SEC. 992. Upon the filing of a transcript the justice must make an judgment, how en- entry thereof in his docket, and thereafter execution may issue to enforce such judgment, or any part thereof remaining unsatisfied, as if it had been given by such justice with whom the transcript is filed. SEC. 993. At any time before the expiration of the return day of the execution it may be renewed for another period of thirty days, at the request of the plaintiff, by an indorsement to that effect, made by the justice thereon. Such indorsement must be dated, and if any part of such execution has been satisfied, must state the amount then due thereon. An entry of such renewal must also be made in the docket of the justice.

Justice may en- SEC. 994. A justice of the peace has authority and power to enforce force judgment a judgment given by his predecessor in office, or by a justice whose given by his pred- docket has been transferred to him, and to complete any unfinished business begun before such predecessor, or entered in such docket, as if the same had been given or begun before himself.

ecessor.

Appeal from jus

may take, and from what judgment.

SEC. 995. Either party may appeal from a judgment given in a tice's court, who justice's court, in a civil action, when the sum in controversy is not less than fifty dollars, or for the recovery of personal property of the value of not less than fifty dollars, exclusive of costs in either case, except when the sum is given by confession or for want of an answer, as prescribed in this chapter, and not otherwise.

-to what court

SEC. 996. The appeal is taken to the district court, and may be and within what taken within thirty days from the date of the entry of the judgment. The party appealing is known as the appellant and the adverse party the respondent, but the title of the action is not thereby changed.

time.

-how taken.

—undertaking,

SEC. 997. An appeal is taken by serving a notice thereof on the adverse party or his attorney and filing the original, with the proof of service indorsed thereon, with the justice, and by giving the undertaking for the costs of the appeal as hereinafter provided.

SEC. 998. The undertaking of the appellant must be given, with when to stay pro- one or more sureties, to the effect that the appellant will pay all costs and disbursements that may be awarded against him on the appeal; but such undertaking does not stay the proceedings unless the under

ceedings.

taking further provides to the effect following, that the appellant will satisfy any judgment that may be given against him in the appellate court on the appeal.

SEC. 999. If the judgment appealed from be in favor of the appel-. When proceedlant, the proceedings thereon are stayed by the notice of appeal and ings stayed by undertaking for costs. the undertaking for the costs of the appeal.

execution.

SEC. 1000. When an appeal is taken the justice must allow the same Allowance of apand make an entry thereof in his docket, stating whether the proceed- peal and return of ings are thereby stayed or not. When the proceedings are stayed, if an execution has been issued to enforce the judgment, the justice must recall the same by written notice to the officer holding the execution, and thereupon it must be returned and all property taken thereon and not sold released; and if the body of the defendant has been taken on execution he must be discharged from custody.

Qualifications

SEC. 1001. All sureties in an undertaking under the provisions of this chapter must have the qualifications of bail upon arrest, and, if and justification of required by the adverse party, must justify before the justice in like sureties.

manner.

SEC. 1002. Within twenty days after the allowance of the appeal Transcript, the appellant must file with the clerk of the district court a transcript when filed and of the cause. The transcript must contain a copy of all the material what constitutes. entries in the justice's docket relating to the cause or the appeal, and must have annexed thereto all the original papers relating to the cause or the appeal and filed with the justice.

Appeal, tried.

SEC. 1003. Upon the filing of the transcript with the clerk of the district court the appeal is perfected, and the action shall be deemed perfected pending and for trial therein as if originally commenced in such court, and the district court shall proceed to hear, try, and determine the same anew, without regarding any error or other imperfection in the original summons and the service thereof, or on the trial, judgment, or other proceeding of the justice or marshal in relation to the cause.

how

and

Dismissal of

SEC. 1004. The district court, on motion of the respondent, may, at any time before the action is called for trial, dismiss the appeal, if it appeal. satisfactorily appear that the transcript and original papers annexed are incomplete in any material particular, unless upon the cross motion of the appellant it makes a rule upon the justice to supply such omission, upon such terms against the appellant as may be just. At any time before the trial the court may dismiss the appeal upon the motion of the appellant.

Judgment in the

SEC. 1005. When an appeal is dismissed the district court must give judgment as it was given in the court below, and against the appellant, appellate court. for the costs and disbursements of the appeal. When judgment is given in the appellate court against the appellant, either with or without trial of the action, it must also be given against the sureties in his undertaking according to the nature and effect of it. If the appellant fail to file such transcript within the time required, the adverse party may file a transcript of the judgment of the justice, and the notice and undertaking on appeal, which, on demand, the justice shall deliver to him for that purpose, and thereupon have such appeal dismissed and judgment against the appellant and his sureties as provided in this section.

Defective under

SEC. 1006. An appeal can not be dismissed on the motion of the respondent, on account of the undertaking therefor being defective, taking, how cured. if the appellant, before the determination of the motion to dismiss, will execute a sufficient undertaking, and file the same in the appellate court, upon such terms as may be deemed just.

SEC. 1007. In all cases of appeal the bill of items of the account sued

Amendment of

on, or filed as a counterclaim or set-off, or the abatement of the plain- pleadings in the tiff's cause of action, or of the defendant's counterclaim or set-off, or appellate court. other ground of defense filed before the justice, may be amended upon

viewed.

appeal in the appellate court to supply any defect, deficiency, or omission therein, by filing formal pleadings therein when by such amendment substantial justice will be promoted; and in all cases when required by the court, or by either party to the action, formal pleadings shall be filed on either side upon the trial of the cause on appeal; when either party requires such formal pleadings, he shall cause to be served on the opposite party a notice thereof in writing, and file the same in the court where the cause is pending by the first day of the term of such court at which such cause is to be tried; but no new item or cause of action not embraced or intended to be included in the original account or statement shall be added by such amendment.

Judgment of jus- SEC. 1008. No provision of this code in relation to appeals or the tices may be re- right of appeal must be construed so as to prevent either party to a judgment given in a justice's court from having the same reviewed in the district court for errors in law appearing upon the face of such judgment or the proceedings in connection therewith, as provided in chapter fifty-five.

Appeals, where jury is demanded.

Who may act as attorney.

Special duties.

Party entitled to one hour.

Proceedings for contempt.

Punishment for contempt.

SEC. 1009. No appeal can be taken, by the party who demanded a jury, from a judgment in a justice's court given upon the verdict of such jury, unless the judgment be for an amount of money not less than fifty dollars or for the recovery of personal property of the value of not less than fifty dollars, exclusive of costs and disbursements in either case.

SEC. 1010. Any person may act as attorney for another in a justice's court, except a person or officer serving any process in the action or proceeding other than a subpoena.

SEC. 1011. Whenever it appears to the justice that any process or order authorized to be issued or made by this code will not be served for want of an officer, such justice may appoint any suitable person, not being a party to the action, to serve the same; such an appointment may be made by an indorsement on the process or order, in substantially the following form, and signed by the justice with his name of office: "I hereby appoint A B to serve the within process, or order," as the case may be.

SEC. 1012. A party is entitled to one hour in which to make his appearance after the time specified in the summons, and not otherwise; and if the justice be then actually engaged in other official business he may, on his own motion, postpone further proceedings in the case until such official business has been completed or he can be disengaged therefrom.

SEC. 1013. Chapter fifty-eight of this title, defining contempts, and the proceeding for punishing a party guilty of contempt, shall apply to justices' courts, except as in this chapter otherwise specially provided. SEC. 1014. The punishment for a contempt in a justice's court shall be by fine or imprisonment, or both; but the fine shall in no case exceed twenty-five dollars, nor the imprisonment ten days.

SEC. 1015. No person shall enter upon any land, tenement, or other Entry upon real real property, but in cases where entry is given by law; and in such property without cases the entry shall not be made with force, but only in a peaceable

manner.

force.

Action to re

case of forcible en

SEC. 1016. When a forcible entry shall be made upon any premises, or when an entry shall be made in a peaceable manner and the posses- cover possession in sion shall be held by force, the person entitled to the premises may try and detainer. maintain an action to recover the possession thereof before the commissioner of the precinct in which such real property is situated.

Necessary aver

plaint.

SEC. 1017. In such action it shall be sufficient to state in the complaint a description of the premises with convenient certainty, that ments and comthe defendant is in possession thereof, that he entered upon the same with force, or unlawfully holds the same with force, as the case may be, and that the plaintiff is entitled to the possession thereof.

Action for, how

SEC. 1018. Such action, except as hereinafter especially provided, shall be conducted in all respects as other actions before commissioners. conducted. SEC. 1019. The summons shall be served and returned as in other -service of sumcases; such service shall be not less than two nor more than four days mons. before the day of trial appointed by the commissioner.

-grant of con

-trial by commissioner.

SEC. 1020. No continuance shall be granted for a longer period than two days, unless the defendant applying therefor shall give an under- tinuance. taking to the adverse party, with good and sufficient security, to be approved by the commissioner, conditioned for the payment of the rent that may accrue if judgment be rendered against the defendant. SEC. 1021. If the action be tried by the commissioner without a jury, and after hearing the evidence he shall conclude that the complaint is not true, he shall enter judgment against the plaintiff for costs; if he find the complaint true, or if judgment be rendered by default, he shall render a general judgment against the defendant and in favor of the plaintiff for restitution of the premises and costs of action; if he find the complaint true in part, he shall render judgment for the restitution of such part only, and the costs shall be taxed as the commissioner shall deem just and equitable.

-verdict of

SEC. 1022. If the action be tried by a jury, and they shall find the complaint true, they shall render a general verdict of guilty against jury. the defendant; if not true, then a general verdict of not guilty; if true in part, then a verdict setting forth the facts they find; and the commissioner shall render judgment according to the verdict.

-judgment.